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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Friday, June 9, 2017

Who is liable in criminal conviction discrimination cases?

Did you know it is illegal under New York law to fire someone -- or fail to hire them -- because of their criminal conviction? There are some exceptions to this rule (i.e., an embezzler probably can be fired if he has to handle money) but the presumption is that you get a second chance in this world. The issue raised in this case is how do you assign liability when the employer is told by a third party to fire the plaintiff?

The case is Griffin v. Sirva, Inc., decided on May 31. Plaintiffs worked for Astro Moving and Storage, which fired them after discovering their prior criminal convictions. Astro had signed a contract with Allied Van Lines that prohibited certain ex-convicts from working on Allied jobs. Can Allied be held liable for firing plaintiffs? The state law that gives rise to these claims was not clear on the answer, so the Second Circuit last year sent the case to the New York Court of Appeals for an answer.

The State Court of Appeals held the state law only limits liability in these cases to the plaintiff's employer. It also held that, in determining whether an entity is someone's employer, we consider four factors: "“(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant’s conduct." This ultimately boils down the "the alleged employer's power to order and control the employee in his or her performance of work."

Finally, the State Court of Appeals said that the state law "extends liability to persons and entities beyond joint employers" and that it applies to out of state defendants. In the end, the provision should be construed liberally. Indeed, the state's highest court has applied this law to aiders and abettors who did not have any employment relationship with the plaintiff.

After two separate appeals, one to the Second Circuit which then sent the case to the New York Court of Appeals, the case is therefore sent back to the Southern District of New York.